No. 18210 | Neb. | Jun 5, 1915
Lead Opinion
Appeal from a judgment of the district court for Merrick county. The action was brought by John E. Dorshimer against the defendant, J. W. Herndon, to recover an attorney fee of $200. The suit was commenced in the county court, where the plaintiff had judgment, and the defendant appealed to the district court. On the trial in that court the plaintiff was again successful, and the defendant has appealed to this court.
The plaintiff’s petition was based on an oral contract by which the defendant employed the plaintiff, who is a practising attorney, to assist him in the defense of a certain action brought against the defendant in the district court for Merrick county. The defendant was a resident of Maryville, Missouri. It was alleged in the petition that defendant agreed to pay plaintiff the sum of $200 for his services in defending the suit, and agreed to send the plaintiff one-half of that amount immediately on his return to his home in Missouri. The remainder was to be paid within a short time thereafter, or as the litigation progressed. It appears that the plantiff entered upon the employment and prepared the necessary papers to remove the cause to the federal court in accordance with defendant’s instructions; that the clerk of the district court required the defendant to pay the costs which had already accrued, and the clerk of the federal court required the payment of certain advanced costs before filing the case in
When the case came on for trial in the district court defendant was absent, although he was in court in person at the commencement of the term. His attorney filed an application for a continuance, supported by his own affidavit. The court refused to continue the case. To this the defendant’s attorney excepted. On the trial the plaintiff made his proof, and, the defendant being absent and offering no testimony, the trial court instructed the jury to return a verdict for the plaintiff. It is defendant’s contention that the court erred in overruling the motion for a continuance. The affidavit filed for that purpose will not be set forth in the opinion. It is sufficient to say that defendant knew the cause was set for trial during the term of court at which he was present, and that he understood the order, yet he left the court without leave, and, instead of going to his home, he went to South Dakota, without informing his attorney of that fact or leaving any information as to where he might be found when called upon to respond to a notice of the approaching trial. The district court, therefore, did not err in refusing to grant the continuance asked for.
It is also contended that the court erred in directing a verdict for the plaintiff. It is argued that the contract was abrogated, and the plaintiff could not recover the fee which defendant agreed to pay him; that, having sued upon an express oral contract, he could not recovér as for a quantum meruit. It may be conceded that plaintiff was not entitled to recover on a quantum meruit, and that contention will receive no further consideration; but we cannot agree with defendant that plaintiff could not recover on the express contract. The agreement, as shown by the testimony, was clear and explicit. The plaintiff entered
As we view the case, the trial court did not err in directing a verdict for the plaintiff for the full compensation of $200. The judgment of the district court is therefore
Affirmed.
Rehearing
The appellant has filed a motion for rehearing, and contends that the opinion overlooks the fact that plaintiff unqualifiedly admitted that he had quit the service of the defendant. A re-examination of the record shows that the plaintiff testified that, when defendant paid him the fee agreed upon, he was still ready and willing to perform the services. He said: “When he pays me my fee, I am ready to serve him.”
It is next contended' that our opinion in this case is in direct conflict with the rule announced in Shevalier v. Doyle, 88 Neb. 560" court="Neb." date_filed="1911-02-28" href="https://app.midpage.ai/document/shevalier-v-doyle-6659557?utm_source=webapp" opinion_id="6659557">88 Neb. 560. Appellant insists that the rule in that case should be adhered to; that a different rule should not be announced without expressly overruling that case. In Shevalier v. Doyle, the contract of employment was terminated; Doyle had accepted his discharge; and, in the suit brought by Shevalier to cancel the mortgage given .to secure Doyle’s fee, the reasonable value of the service was alleged and the attorney was allowed to recover the same. In the case at bar the contract had not been abrogated. The defendant simply neglected and refused to pay plaintiff the fee agreed upon by him. In this case plaintiff sued to recover the compensation agreed upon. He manifested his willingness to perform the services if defendant would pay him his fee. The testimony shows that the defendant employed another attorney and ignored plaintiff. The cases are easily distinguishable, and the motion for a rehearing is
Overruled.